Partly allowed

V.Rajeswari v. B.Appalanaidu and 3 Others

Andhra Pradesh HC20 Oct 2023AS/2863/2001

Case brief

AI extract

What is this about?

This appeal challenged a trial court decree awarding a 1/6th share in ancestral properties. The High Court re-divided the joint family property into six equal shares: three for the father's sister and one each for the three daughters. Compensation was distributed equally among the daughters with interest, reversing the trial court's 1/6th award.

What did the court decide?

The suit schedule properties divided into six equal shares: 3 to Respondent No. 3; 1 each to Appellant, Respondents No. 2 and 4. Compensation deposited to be shared equally among Appellant and Respond

V.Rajeswari Vs B.Appalanaidu and 3 Others — Specific Performance | Andhra Pradesh HC (2023)

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* THE HON’BLE SRI JUSTICE V.SRINIVAS

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APPEAL SUIT No.2863 of 2001

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%Dated: 20-10-2023

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# Vavilapalli Rajeswari

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... Appellant

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and

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$ 1. Bavera Appalanaidu and three others ... Respondents

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! Counsel for the Appellant : Sri T.Nageswara Rao Counsel for Respondent No.3 : Sri G.V.S.Mehar Kumar Counsel for Respondent No.4 : Sri G.Satish Babu

< GIST :

> HEAD NOTE :

? Cases referred :

1 (2016) 2 SCC 36 2 (2018) 3 SCC 343 3(2020) 9 SCC (1) 4 (2003) 3 SCC 552

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5 2022 (5) SCC 334

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THE HON’BLE SRI JUSTICE V.SRINIVAS

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APPEAL SUIT No.2863 of 2001

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Vavilapalli Rajeswari ... Appellant and 1. Bavera Appalanaidu and three others ... Respondents

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DATE OF ORDER PRONOUNCED: 20.10.2023

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THE HON’BLE SRI JUSTICE V.SRINIVAS

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1. Whether Reporters of Local newspapers may be allowed to see the Judgments?	Yes/No
2. Whether the copies of judgment may be Marked to Law Reporters/Journals.	Yes/No
3. Whether Their ladyship/Lordship wishes to see the fair copy of the Judgment?	Yes/No

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THE HON’BLE SRI JUSTICE V.SRINIVAS

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APPEAL SUIT No.2863 of 2001

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JUDGMENT:

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This appeal under Section 96 of the Code of Civil Procedure is directed against the decree and judgment dated 26.09.2001 in O.S.No.10 of 2000 on the file of the Court of learned Senior Civil Judge, Rajam.

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For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the trial Court.

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The appellant herein is the plaintiff and the respondents herein are the defendants before the trial Court.

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The plaintiff instituted the suit for partition and separate possession of her 1/3^rd share in suit schedule properties and in the amount deposited to the credit of L.A.O.P.Nos.12, 13 and 14 of 2000 on the file of the Court of learned Senior Civil Judge, Rajam.

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Before adverting to the material and evidence on record and nature of findings in the judgment of the trial Court, it is necessary to narrate the pleadings pleaded by the parties.

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As per the averments made in the plaint, the brief case of the plaintiff, is as follows:

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(i) Initially, the plaintiff filed the suit against defendant Nos.1 and 2 and later defendants Nos.3 and 4 were added as parties. The plaintiff, defendant Nos.2 and 4 are the daughters and the 3^rd defendant is the sister of the 1^st defendant. The suit schedule properties are the ancestral properties of the 1^st defendant. The marriage of the plaintiff, defendant Nos.2 and 4 took place in 1991, 1993 and 1978 respectively. The plaintiff and the 2^nd defendant became coparceners of the joint family by virtue of Section 29-A of the Hindu Succession Act as the plaintiff and the 2^nd defendant were unmarried by the date of Act 2 of 1986 of A.P.

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(ii) As the defendants have been trying to alienate the suit schedule properties behind back of the plaintiff, the plaintiff gave a registered notice on 25.06.1999 to the 1^st defendant demanding him for partition of the joint family properties. The 1^st defendant gave a reply on 25.07.1999 with false allegations. Subsequent to filing of the suit, the Land Acquisition Officer deposited total amount of Rs.2,81,898/- in L.A.O.P.Nos.12, 13 and 14 of 2000. As defendants refused to partition the suit properties, the plaintiff laid the suit.

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Defendant Nos. 3 and 4 remained ex parte before the trial Court. The 1^st defendant with adoption memo of the 2^nd defendant

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filed written statement admitting the relationship between the parties and further stating as follows:

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(i) The plaint schedule is incorrect. One Bevara Tavitinaidu and Bevara Kannamanayuralu, who are father and mother of the 1^st defendant acquired some properties. The 1^st defendant also acquired some properties. The properties of the parents of the 1^st defendant devolved upon him and his sister. Hence, the plaintiff is not entitled to claim any share in the properties of his father and mother.

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(ii) The 1^st defendant gave gold ornaments, other movables worth of Rs.1,00,000/- and dowry of Rs.1,50,000/- to the plaintiff at the time of her marriage. The plaintiff orally relinquished her claim in the family properties. If a daughter acquires a right in joint family properties, her marriage expenses will be a liability on her. As the 1^st defendant spent nearly about Rs.1,50,000/- towards customary rights at the time of her marriage, the plaintiff is not entitled to claim any share. The plaintiff and her husband along with her sister, Uttaramma(4^th defendant) and her husband were opposed the 2^nd defendant and her husband. The plaintiff and her sister Uttaramma(4^th defendant) instigated their mother to file a complaint against the 1^st defendant for the offence under Section 498-A of IPC.

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The 1^st defendant became an absolute owner of all the properties. In any event, the plaintiff is entitled to 1/6^th share only in the suit schedule properties.

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The 4^th defendant filed written statement, stating as follows:

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The suit schedule properties are the ancestral properties. Her grandfather by name, Bevara Tavitinaidu, gave Ac.4.00 cents of wet land to the 3^rd defendant i.e. sister of the 1^st defendant, towards Pasupukunkuma. The 1^st defendant is entitled to 1/5^th share in the suit schedule properties. The plaintiff in collusion with the 1^st defendant is claiming 1/3^rd share in the suit properties.

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Basing on the above pleadings, the trial Court settled the following issues for trial:

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Whether the plaint schedule is correct?

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Whether the suit properties are the ancestral properties and if so, to what share the plaintiff is entitled to?

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Whether the marriage expenses incurred by the plaintiff for the marriage of the defendants has to be deducted?

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Whether the suit is bad for non-joinder of necessary parties?

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To what relief?”

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After filing of written statement by the 4^th defendant, the

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following additional issue was framed by the trial Court:

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“Whether D.4 is entitled to a share in suit properties?”

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At the trial, on behalf of the plaintiff, the plaintiff herself was examined as PW.1 and Exs.A.1 to A.4 were marked. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B.7 were marked.

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Basing on the material and evidence, trial Court came to conclusion that the plaintiff is entitled to 1/6^th share in the suit schedule properties and in the compensation amount after deducting Rs.40,000/-. The plaintiff is also entitled to future mesne profits from the date of suit till obtaining separate possession by way of separate application. The 1^st defendant is entitled to receive Rs.40,000/towards his share. Thus, preliminarily decreed the suit.

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It is against this Decree and Judgment, the plaintiff preferred this appeal.

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A memo in U.S.R.No.73296 of 2023 dated 27.07.2023 filed by Sri G.V.S.Mehar Kumar, learned counsel for the 3^rd respondent stating that the 1^st defendant died in the year 2016 itself leaving behind the appellant/plaintiff and respondent/defendant Nos.2 and 4 herein and his wife predeceased him.

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Heard Sri T.Nageswara Rao, learned counsel for the appellant/plaintiff, Sri G.V.S.Mehar Kumar, learned counsel for the 3^rd

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respondent/defendant and Sri G.Satish Babu, learned counsel for the 4^th respondent/defendant.

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Sri T.Nageswara Rao, learned counsel for the appellant/ plaintiff submits that the plaintiff is entitled to 1/3^rd share in the joint family property being daughter of the 1^st defendant; that since the plaint schedule properties are ancestral properties of the 1^st defendant, the plaintiff is entitled to the share as prayed for; that defendant No.1 and his family, defendant No.2 and plaintiff will have equal shares as defendant No.2 and plaintiff became coparceners; that the trial Court erred in holding that the plaintiff is entitled to 1/6^th share, defendant No.3 is entitled to 3/12^th share and defendant No.1 is entitled to 5/12^th share in the suit schedule properties and also erred in deducting Rs.40,000/- from the compensation awarded as it was the obligation for defendant No.1 being father to perform the marriage of plaintiff and any amount spent on that count cannot be deducted from the share of the plaintiff and thereby, prays to allow the appeal.

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Per contra, Sri G.V.S.Mehar Kumar, learned counsel for the 3^rd respondent and Sri G.Satish Babu, learned counsel for the 4^th respondent, submits that the trial Court, on considering the facts and circumstances and material on record, rightly decreed the suit; that

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there are no grounds to interfere with the decree and judgment of

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the trial Court and that the appeal is liable to be dismissed.

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It is against this backdrop, the following points arise for determination:

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Whether the suit schedule properties are joint family properties or not, if so, they are liable for partition among plaintiff and defendants?

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Whether the 3^rd defendant is also entitled to a share along with the 1^st defendant?

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Whether the judgment and decree dated 26.09.2001 passed by the learned Senior Civil Judge, Rajam, is liable to be set aside? If so, to what extent?

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To what relief?

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POINT Nos.1 to 3 :

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Before discussing the points, it is necessary to refer the genealogy of the parties:

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B.Tavitinaidu
B.Appalanaidu V.Saraswathi
M.Uttaramma K.Sarada V.Rajeswari

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To prove the case of the plaintiff, the plaintiff herself was examined as PW.1 and on behalf of the defendants, the 1^st defendant,who is father of the plaintiff was examined as DW.1 and the sister of plaintiff, who is the 4^th defendant examined as DW.2.

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It is proved that on 25.06.1999 under Ex.A1, the plaintiff got issued a legal notice seeking partition, for which the 1^st defendant, who is father of the plaintiff got issued a reply on 25.07.1999. Before deciding the point, it is relevant to state that the plaintiff was married in the year 1991, 2^nd defendant was married in the year 1993 and the 4^th defendant was married in the year 1978 and all of them are the daughters of the 1^st defendant-B.Appala Naidu and the 3^rd defendant is none other than his sister.

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The plaintiff stated in the pleadings as well in the evidence that the 1^st defendant did not present any gifts in her marriage and she filed the suit claiming her share as the 1^st defendant began to waste the family properties having developed illegal intimacy with another woman and also not even taking care of her mother, which is also constrained to file the suit.

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The plaintiff further stated in her evidence that the 1^st defendant got the properties from his father. Her grandfather, B.Taviti Naidu, while living jointly with the 1^st defendant, died on

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18.08.1999. Her grandfather was arranged her marriage and three days after her betrothal ceremony, he died. Since the 1^st defendant developed intimacy with another woman leaving her mother and as his father was wasting the property and trying to alienate the properties, she got issued a legal notice-Ex.A1 for partition of the schedule properties and Ex.A2 is the postal acknowledgement. The 1^st defendant also got issued a reply covered under Ex.A3. Thereafter, the 1^st defendant also filed a caveat-Ex.A4 on the file of the Court of Senior Civil Judge, Rajam.

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It was elicited in her evidence that the 4^th defendant is her elder sister and one Sanyasi Naidu is her husband and they are living at Sankili. It was also further elicited in the cross examination that one Bevara Kannamnairalu is her paternal grandmother. She had no personal knowledge as to when and how the 1^st defendant got the suit properties.

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It is also found from the evidence of PW.1 as well record that the 4^th defendant is the first daughter, 2^nd defendant is the second daughter and plaintiff is the third daughter of the 1^st defendant.

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No doubt, there are several facts elicited in the cross examination of PW.1 that marriage and their expenses etc., are not relevant to determine this appeal because there is no evidence of

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presentation of Rs.1,50,000/- as dowry and other gifts at the time of marriage nor incurred loans at the time of marriage of the plaintiff.

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Since the plaintiff claimed a share in the compensation awarded by the Government for acquiring lands under Madduvalasa Reservoir Project, disputes arose between her and the 1^st defendant. It is claimed by the plaintiff that she is legally entitled for a share.

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Whereas DW.1, who is father of the plaintiff, stated in his evidence that PW.1 and defendant Nos.2 and 4 are his daughters. His father, Taviti Naidu died about 15 years and his mother died 20 years prior to his evidence. He deposed before the Land Reforms Tribunal that he submitted declaration that he and his father divided properties and on such declarations the Land Reforms Tribunal passed a judgment and copy of the order served on him is filed into Court and got marked as Ex.B1. Himself and the 3^rd defendant are the children of his parents.

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He further stated in his evidence in-chief that he incurred expenses of Rs.2,00,000/- and he has to discharge the said loan. All his daughters have no right in the properties of his father.

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In the cross examination, it was elicited that himself and his father, possessed Ac.30.00 cents of land including the lands acquired by the Government in LAOP Nos.12, 13 and 14 of 2000. His father

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died one year prior to the betrothal ceremony of PW.1. He cannot say the details of lands, which fell to his share in the division with his father and the details of lands which fell to the share of his father. But the fact remains that they submitted declarations to retain the entire land. In those circumstances, the said Ex.B1-copy of order in L.C.C.No.1604 dated 15.06.1977, may not come in the way to deny the right of the plaintiff.

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He stated that he got two tiled houses in Nilayyavalasa and he did not file any document to show the details of lands purchased by his father, mother and himself. Even in the cross examination made by the 4^th defendant, who was said to have sailing with the plaintiff, he stated that he gave Rs.2,00,000/- to the 4^th defendant at the time of her marriage but no documents are filed to that effect showing the dates.

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Besides the 1^st defendant, the 4^th defendant was examined as DW.2. She stated that she was also entitled to a share in the joint family properties along with other daughters of the 1^st defendant and nothing was elicited in her cross examination.

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Now, coming to the documentary evidence adduced by the plaintiff is concerned, Ex.A1 is legal notice dated 25.06.1999, Ex.A2 is the acknowledgment, Ex.A3 is the reply and Ex.A4 is the caveat

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filed by the 1^st defendant. From perusal of Exs.A1 and A3, the plaintiff got issued Ex.A1 claiming her share in the subject property, whereas through Ex.A3, the 1^st defendant stated that the plaintiff would not get any share in the subject property.

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Coming to the documentary evidence adduced by the defendants is concerned, Ex.B1 is an order dated 15.06.1977 passed by the Land Reforms Tribunal. In the said order, it was clearly stated that the 1^st defendant holds Ac.38.18 cents and total holding works out to Ac.1.4826 standard holding. The family consists of 5 members i.e., 1^st defendant, his wife and three of his children. The property declared as joint property and his father also filed a separate declaration in L.C.C.No.1594/PLK/75 and his share works out to 0.7414 standard holding. The family unit of the declaring is entitled to 1.0000 standard holding. Since the total standard holding held by the family unit of the declarant is less than that he is entitled to under Section 4(1) of the Act and hence, it was determined under Section 9 of the Act that the family unit of the declarant did not hold land in excess of the ceiling area on the notified date i.e. 01.01.1975. It is evident from Ex.B1 that the family of the 1^st defendant holds Ac.38.18 cents. Hence, it is established that the suit schedule properties are the ancestral properties.

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It is contended by the 1^st defendant that it is only Ac.30.00 cents. At this juncture, it is clear that the 1^st defendant is not disputing about the extent of schedule property that was mentioned in Ex.B1. There is no dispute regarding Ex.B2-decree and Ex.B3-order in LAOP No.12 of 2000, wherein a reference was made by the Deputy Sub-Collector that there was acquisition of land in Block No.1 (Hc.0.96.5) in Neelayyavalasa Village of Vangara Mandal as per Award No.28/99 dated 16.08.1999 and under this award an amount of Rs.1,31,095/- was deposited into Court. In the same manner, under L.A.O.P.No.12 of 2000, the claimants 1, 3 and 4 are directed to work out their remedies in the present suit ie. O.S.No.10 of 2000 as there is a claim made by the plaintiff in the deposit made by the Special Deputy Collector. Ex.B4 is the certified copy of a decree and Ex.B5 is certified copy of the order in LAOP No.13 of 2000 passed by the learned Senior Civil Judge, Rajam, in which an amount of Rs.92,378/was deposited into Court by way of cheque by the Special Deputy Collector, Rajam as the land of Hc.0.68.0 in Neelayyavalasa Village of Vangara Mandal was acquired under Award No.29 of 1999. Exs.B6 and B7 are decree and order in LAOP No.14 of 2000, under which an amount of Rs.58,425/- was deposited by the Land Acquisition Officer for acquisition of land in Neelayyavalasa Village of Hc.0.43.0 of land

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and all these decrees were passed as the parties i.e. Appala Naidu, Uttaramma and Rajeswari shall work out their remedies in the suit.

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In fact, the sister of Appala Naidu i.e. 3^rd respondent/defendant herein, was shown as a party in LAOP Nos.12 to 14 of 2000. However, she withdrawn her claim before the Land Acquisition Officer.

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Before deciding the points in issue, it is relevant to state that the Hindu Succession Act, 1956, was amended in 2005 to grant equal rights to daughters in ancestral property. According to this amendment, daughters have the same rights as sons in the ancestral property of their Hindu family. This means that daughters have a right to inherit, possess, and manage ancestral property. The amendment to the Hindu Succession Act in 2005 also conferred coparcenary rights upon daughters. Daughters now have an equal share in the coparcenary property along with their brothers. The Supreme Court of India has, in several judgments, reaffirmed and clarified the rights of daughters in ancestral property.

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One of the landmark decisions in this context is Prakash v. Phulavati¹ ’s case, wherein the Supreme Court clarified that amendment to the Hindu Succession Act in 2005 in granting daughters

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1 (2016) 2 SCC 36

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equal coparcenary rights would apply prospectively. This means that daughters would have coparcenary rights only in properties acquired after the amendment came into force.

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Subsequently, in Danamma @ Suman Surpur v. Amar² , the Supreme Court held that amendment to the Hindu Succession Act in 2005 would have a retrospective effect.

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Subsequently, in Vineeta Sharma v. Rakesh Sharma³ , the Hon‟ble Supreme Court held that if a daughter is alive on the date of enforcement of the Amendment Act, 2005, she becomes coparcener with effect from the date of amendment irrespective of whether she is born before or after the amendment or not. As per the provisions of substitute in Section 6 of the Hindu Succession Act, conferring status of a coparcener on the daughter born before or after amendment in the same manner as the son with the rights and liabilities since rider coparcener „shall substitute Section 6 is by birth, it is not at all necessary that the father or daughter should be live in as on the date of coming into force of date of amendment daughter now being coparcener with effect from the date of amendment can claim partition, who is a necessary coparcener.

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2 (2018) 3 SCC 343

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3 (2020) 9 SCC (1)

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Further, in para Nos.53 and 58 of the said judgment, it was held as follows:

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“53. Before the amendment, section 6 provided that on the death of a male Hindu, a coparcener's interest in Mitakshara coparcenary shall devolve by survivorship upon the surviving members of the coparcenary under the uncodified Hindu law and not in accordance with the mode of succession provided under the Act of 1956. It was provided by the proviso to section 6, in case a male Hindu of Mitakshara coparcenary has left surviving a female relative of Class I heir or a male relative who claims through such female relative of Class I. The Schedule containing categories of Class I heirs is extracted hereunder:

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“THE SCHEDULE (See section 8) HEIRS IN CLASS

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I AND CLASS II Class I Son, daughter, widow; mother; son of a pre-deceased son; daughter of a pre-deceased son, son of a pre-deceased daughter, daughter of a pre-deceased daughter; widow of a pre-deceased son, son of a pre- deceased son of a pre-deceased son; daughter of a pre-deceased son of a predeceased son; widow of a pre-deceased son of a pre- deceased son; [son of a pre-deceased daughter of a pre-deceased daughter, daughter of a pre-deceased daughter of a predeceased daughter, daughter of a predeceased son of a pre-deceased daughter,

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daughter of a pre-deceased daughter of a predeceased so.”

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58. In G. Sekar v. Geetha & Ors., (2009) 6 SCC 99 with respect to the operation of Amendment Act, 2005, it was observed that the same is prospective in nature and not retrospective thus:

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“30. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature. The High Court might have committed a mistake in opining that the operation of Section 3 of the 2005 Act is retrospective in character, but, for the reasons aforementioned, it does not make any difference. What should have been held was that although it is not retrospective in nature, its application is prospective.”

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From the above, it is clear that on the death of a male Hindu,

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a coparceners‟ interest in Mitakshara coparcenary shall devolve by survivorship upon the surviving members of the coparcenary. The exception was provided by the proviso to Section 6 that if the deceased had left surviving a female relative specified of Class-I of the Schedule or a male relative specified in that Class, who claims through such female relative, the interest of the deceased in the

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Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, in order to ascertain the share of the deceased coparcener the partition has to be deemed before his death.

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At para-60 of the Vineeta Sarma‟s judgment, it was also found that the daughter is conferred the right of coparcener. Section 6(1)(a) makes daughter by birth a coparcener "in her own right" and "in the same manner as the son." Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property "as she would have had if she had been a son". The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. O n facts, there is no dispute that the property which was the subject-matter of partition suit belongs to joint family. Because the 3^rd defendant is none other than the sister of the 1^st defendant, who is alive and no proof of partition between the 1^st defendant and his father. So, whatever the property, which is in the joint family, the 3^rd defendant also having right in the said property along with the 1^st defendant.

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In this peculiar case, in Ex.B1, though it is clearly stated in declarations that the partition took place between the 1^st defendant and his father but no evidence is adduced by the 1^st defendant showing that there was partition of the schedule properties. Hence, this Court is not in a position to believe that there was a partition between him and his father. It is an admitted fact that the 3^rd defendant, who is sister of the 1^st defendant is alive. Hence,in the property acquired by the 1^st defendant from his father, the 3^rd defendant is also entitled to equal share. Therefore,in the subject property, the defendants 1 and 3 have equal shares.

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Since the 1^st defendant died intestate leaving behind his daughters i.e the plaintiff, 2^nd defendant and the 4^th defendant as legal heirs, the share that was allotted to him was divided into three equal shares and allot one such share to each of them since it belongs to joint family as well it is also an ancestral property. Thus, the plaintiff is having 1/3^rd share in the share allotted to the 1^st defendant.

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So far as the defences raised by the 1^st defendant that no share or property entitled to the plaintiff or other daughters are concerned, except his self-serving testimony, no material is available on record or any evidence before the trial Court.

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The finding of the trial Court to deduct Rs.40,000/- from the compensation is concerned, there is no pleading nor any evidence, except suggestion in that regard, is not sufficient to reduce the amount of Rs.40,000/- towards compensation amount. Exs.B2 to B7 show that the plaintiff, defendant Nos.1, 2 and 4 are entitled to equal shares out of the compensation amount, which is deposited on the file of the Court of learned Senior Civil Judge, Rajam, in which, plaintiff is entitled to equal share with accrued interest thereon. Hence, this Court needs interference of the judgment of the trial Court in that regard.

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The Hon‟ble Supreme Court in Chandramohan Ramchandra Patil v. Bapu Koyappa Patil (Dead) through LRs⁴ , wherein at Paragraph Nos.14 and 15 held as follows:

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“14. Order 41 Rule 4 of the Code enables reversal of

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the decree by the court in appeal at the instance of one or some of the plaintiffs appealing and it can do so in favour of even non-appealing plaintiffs. As a necessary consequence such reversal of the decree can be against the interest of the defendants vis-àvis non-appealing plaintiffs. Order 41 Rule 4 has to be read with Order 41 Rule 33. Order 41 Rule 33 empowers the appellate court to do complete justice between the parties by passing such order or

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4 (2003) 3 SCC 552

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decree which ought to have been passed or made although not all the parties affected by the decree had appealed.

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In our opinion, therefore, the appellate court by invoking Order 41 Rule 4 read with Order 41 Rule 33 of the Code could grant relief even to the nonappealing plaintiffs and make an adverse order against all the defendants and in favour of all the plaintiffs. In such a situation, it is not open to urge on behalf of the defendants that the decree of dismissal of suit passed by the trial court had become final inter se between the non-appealing plaintiffs and the defendants.”

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The Hon‟ble Supreme Court also referred the above ruling in

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the recent judgment in Azgar Barid (D) by Lrs. v. Mazambi @ Pyaremabi⁵ , wherein at paragraph Nos.12 and 14 held as follows:

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“12. We will first deal with the objection of the appellant that since plaintiff Nos.4 to 8, whose claim was denied by the trial court and who had not challenged the same by way of appeal, are not entitled to relief in the second appeal. This Court in the cases of Bhagwan Swaroop and Others v. Mool Chand and Others, (1983) 2 SCC 132 and Dr. P. Nalla Thampy Thera v. B.L. Shanker and Others, 1984 (Supp) SCC 631 has held that in a suit for

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5 2022 (5) SCC 334

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partition, the position of the plaintiff and the defendant can be interchangeable. Each party adopts the same position with the other parties. It has been further held that so long as the suit is pending, a defendant can ask the Court to transpose him as a plaintiff and a plaintiff can ask for being transposed as a defendant.

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In that view of the matter, we find that the contention raised on behalf of the appellant with regard to plaintiff Nos.4 to 8 being not entitled to relief in the second appeal on the ground that they have not challenged the judgment and decree of the trial court before the First Appellate Court, is not sustainable. As held by this Court in the case of Chandramohan Ramchandra Patil (supra) , the trial court could grant relief even to the non-appealing plaintiffs and make an adverse order against all the defendants and in favour of all the plaintiffs. Merely because the trial court had not granted relief in favour of plaintiff Nos.4 to 8, would not come in their way in the High Court allowing their claim.”

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In view of the above legal position, though the parties, who have not challenged the judgment and decree of the trial court before the First Appellate Court, are also entitled to the relief in a partition suit as all the parties stand on a same pedestal and every party is a plaintiff as well as a defendant and the possession of the

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parties can be interchangeable. Hence, this Court can grant relief even to the non-appealing parties.

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49. In view of the above, this Court is of the view that the suit schedule properties are joint family properties and they are liable for partition equally among the 1^st defendant and his sister i.e. 3^rd defendant. Since the 1^st defendant(father) died, the share that was devolved upon the 1^st defendant shall be divided between the plaintiff and defendant Nos.2 and 4, who are his daughters.

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50. POINT NO.4:

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Accordingly, the Appeal Suit is partly allowed setting aside the decree and judgment dated 26.09.2001 in O.S.No.10 of 2000 on the file of the Court of learned Senior Civil Judge, Rajam, as follows:

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The suit schedule properties be divided into six equal shares, out of which defendant No.3 is entitled to three shares; the plaintiff, defendant Nos.2 and 4 are entitled to one share each.

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So far as the compensation amount, which was deposited on the file of the Court of learned Senior Civil Judge, Rajam, is concerned, the plaintiff, defendant Nos.2 and 4 are entitled to equal

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shares with interest accrued thereon. There shall be no order as to

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costs.

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